NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 7 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK ANTHONY CANDLER, No. 16-15638

Plaintiff-Appellant, D.C. No. 4:11-cv-01992-CW

v.

MEMORANDUM*

SANTA RITA COUNTY JAIL WATCH

COMMANDER; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Claudia Wilken, District Judge, Presiding

Argued and Submitted December 2, 2019 San Francisco, California

Before: W. FLETCHER, CLIFTON, and MILLER, Circuit Judges.

Mark Anthony Candler, a former inmate of the Santa Rita County Jail,

brought this action under 42 U.S.C. § 1983 against officials involved with his

classification into administrative segregation (the classification defendants) and

officials who responded to his written grievances (the grievance defendants). He

now appeals from the district court’s orders granting summary judgment in favor

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. of all defendants. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part

and reverse in part.

1. The district court correctly determined that Candler did not raise a

genuine dispute of fact material to whether the classification defendants violated

his procedural due process rights by holding him in administrative segregation.

Relying on Mitchell v. Dupnik, 75 F.3d 517 (9th Cir. 1996), Candler argues that

jail officials were required to provide him with a hearing that met the standards of

Wolff v. McDonnell, 418 U.S. 539 (1974). But Mitchell involved a decision to

house an inmate in solitary confinement for disciplinary reasons. See 75 F.3d at

523–24. Candler presents no evidence that jail officials housed him in

administrative segregation for any violation of jail rules, nor does he identify other

authority requiring officials to hold a formal hearing in these circumstances.

Candler also argues that he was entitled to informal process consisting of

“notice of the charges against him and an opportunity to present his views.”

Toussaint v. McCarthy, 801 F.2d 1080, 1099 (9th Cir. 1986) (quoting Hewitt v.

Helms, 459 U.S. 460, 476 (1983), abrogated in part on other grounds by Sandin v.

Conner, 515 U.S. 472, 482–83 (1995)). Even assuming, without deciding, that

such a due process right was clearly established, no reasonable juror could

conclude that the classification defendants violated Candler’s rights. Jail officials

testified that they explained the reasons for keeping Candler in administrative

2 segregation and gave him the opportunity to respond. Candler’s contrary testimony

conflicts with undisputed video evidence of his own creation in which Candler

admits that jail officials communicated at least one major reason why he was

placed in administrative segregation: for his own protection. As he explained,

“they tryin’ to say that [the general population is] not secure enough for a critical

leader [of the Acorn street gang] like myself so they put me up in the hole right, so

[no one can] get to me man.” In light of the video, Candler’s testimony that jail

officials did not explain any of the reasons for his confinement cannot create a

triable issue of fact to survive summary judgment. See Scott v. Harris, 550 U.S.

372, 380 (2007).

2. We reject Candler’s substantive due process claim against the

classification defendants. Candler alleges that jail officials placed him in

administrative segregation as punishment for his refusal to cooperate with an

investigation. Apart from his own testimony (which reflects no personal

knowledge of defendants’ mental state), Candler’s only evidence is a memo from

the district attorney requesting that Candler be housed in administrative

segregation. That memo does not show that officials imposed administrative

segregation as a punishment. See Valdez v. Rosenbaum, 302 F.3d 1039, 1045–47

(9th Cir. 2002).

3. Candler argues that the grievance defendants were deliberately

3 indifferent to the conditions of his confinement, in violation of the Fourteenth

Amendment. Candler filed grievances complaining that he (1) received only two

hours of exercise time during one week in 2009; (2) had not received an

explanation about why he was being housed in administrative segregation; and

(3) was not given adequate cleaning supplies to clean his cell and as a result

developed sores and a rash. The district court rejected Candler’s claims based on

those grievances and alternatively held that the grievance defendants were entitled

to qualified immunity.

To establish a claim of deliberate indifference, Candler must prove that,

among other things, the grievance defendants made an “intentional decision with

respect to the conditions under which [he] was confined,” and “a reasonable officer

in the circumstances would have appreciated the high degree of risk involved.”

Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016).

With respect to his claim of inadequate exercise, Candler has presented

sufficient evidence to create a genuine issue of material fact on whether his

Fourteenth Amendment rights were violated. Specifically, Candler presents

evidence that even after his grievance was sustained, he continued to receive

inadequate exercise time. The district court’s contrary conclusion rested on

Pierce v. County of Orange, 526 F.3d 1190 (9th Cir. 2008), which the district court

regarded as establishing that two hours of exercise time per week is the

4 “constitutional floor.” Id. at 1213. Our decision in Pierce upheld an injunction

requiring jail officials to give detainees at least two hours of exercise time, but we

emphasized that the injunction “require[d] considerably less exercise—just two

hours a week—than the one hour a day recognized elsewhere as a constitutional

floor.” Id. The minimum of five to seven hours of exercise time per week for

inmates confined like Candler was clearly established by our cases. See id.;

Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996); Allen v. Sakai, 48 F.3d 1082,

1088 (9th Cir. 1994); see also Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.

1979) (affirming order granting inmates in administrative segregation a “right of

outdoor exercise one hour per day, five days a week”).

The grievance defendants argue that they did not have control over

Candler’s exercise time and therefore are not liable. It may be true that Candler has

not named the correct jail official responsible for any constitutional deprivation.

We do not address that issue but leave it for the district court to resolve on remand.

As for Candler’s other claims against the grievance defendants, we affirm

the grant of summary judgment. Candler’s claim based on his classification fails

for the same reasons presented above with respect to the classification defendants.

For Candler’s sanitation and medical-care claims, even if Candler could establish a

constitutional violation, the district court correctly held that the grievance

defendants are entitled to qualified immunity because it would not have been clear

5 to a reasonable officer that it was unlawful to deny the grievances.

AFFIRMED in part, REVERSED in part, and REMANDED.

The parties shall bear their own costs.

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